Hicksville Water District v American Dry Cleaners
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Hicksville Water District v American Dry Cleaners 2012 NY Slip Op 30241(U) January 18, 2012 Sup Ct, Nassau County Docket Number: 24263/09 Judge: Denise L. Sher Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ' (" [* 1] SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Court Justice TRIAL/IAS PART 31 NASSAU COUNTY HICKSVILLE WATER DISTRICT Plaintiff - against - Index No. : 24263/09 Motion Seq. No. : 04 Motion Date: 10/12/11 AMERICAN DRIVE- IN CLEANERS , MOY' S LAUNDRY , PAMPER FRENCH CLEANERS , LIBERTY CLEANERS , and JOHN and JANE DOES 1 through 100 AMERICAN DRY CLEANERS Defendants. The following papers have been read on this motion: Papers Numbered Notice of Motion Affirmation and Exhibits Affirmation in Opposition Upon the foregoing papers , it is ordered that the motion is decided as follows: Plaintiff moves for an order excluding the testimony of defendant NU- American Cleaners , Inc. d//a Drive- In Cleaners American Drive- In Cleaners i/s/ha American Dry Cleaners f/ a American American ) purported experts , Kevin Kleaka and James Cressy. Defendant American opposes the motion. This case concerns the contamination of plaintiff s water supply by the presence of tetrachloroethylene (" perc ) at Well #11 , located at the intersection of Old Countr Road and South Oyster Bay Road in Hicksvile , New York. In November 2006 , plaintiff received a notice of violation from the Nassau County Department of Health because elevated levels ofperc were detected in the water supply of Well # 11. Plaintiff was required by law to send a notice to its [* 2] customers and the well was removed from service. Thereafter , plaintiff implemented an interim fitration system at Well # 11. According to plaintiff, a permanent treatment system is required. Perc is a man-made , colorless , organic liquid with a chloroformuser of perc is the dry cleaning industry and ten dry cleaner sites like odor. The largest , including those of defendants American and Liberty, were found in the vicinity of Well #11. Plaintiff submits that , pursuant to CPLR it intends to offer the testimony of two purorted 3101 (d)(1), defendant American disclosed that experts at the trial of the instant action. Plaintiff argues that both of those experts ' proposed testimony should be precluded from or largely limited at trial. Plaintiff contends that Kevin Kleaka and James Cressy should be precluded from testifying as experts because they are unqualified. Plaintiff states that defendant American has disclosed Kevin Kleaka , Vice President of Impact Environmental Consulting, Inc. of Bohemia ssment Supervisor ofImpact New York ('Impact Environmental' ), and James Cressy, Ass Environmental , as general ' expert witnesses,' without specifying a paricular area of expertise that they are considered to be ' experts ' in. " Plaintiff adds that Mr. Kleaka should be precluded , education from testifying because he is expected to testify about matters beyond his expertise and experience. Plaintiff states that " (nJothing in defendants that Mr. K1eaka possesses the requisite qualifications ' CPLR 3101 disclosure indicates , training, education , experience and/or , and expertise to opine on issues of hydrogeology, plume tracking, groundwater data analysis fate and transport' with regards to chlorinated solvents , all of which are subjects to be testified to by Mr. Kleaka. Mr. Kleaka only holds a ' Bachelor of Science in Environmental Sciences field of science or engineering. ... Moreover , Mr. Kleaka any degree with no advanced degrees in no indication in has extremely limited training in groundwater remediation. Significantly, there is the CV that Mr. Kleaka has any experience or training in hydrogeology, -:ate and transport' of chemicals , plume tracking, groundwater data analysis or any of the necessar training, experience [* 3] or education as would qualify him as an expert in the subject he is expected to testify. As a result, this Court should preclude his testimony as an expert at trial." Plaintiff furher argues that " (nJothing in defendants ' CPLR 3101 disclosure indicates that Mr. Cressy possesses the requisite qualifications , training, education , experience and/or expertise to opine on issues of hydrogeology, plume tracking, groundwater data analysis , and fate and transport' with regards to chlorinated solvents , all of which are subjects to be testified to by Mr. Cressy.... According to his CV Mr. Cressy has been an ' Assessment Supervisor ' for Impact Environmental since 2005 , performing on Phase I and Phase II environmental site assessments. Conducting site reconnaissance work and drafting Phase I and Phase II reports does not qualify one to testify as an expert hydrologist , or expert in ' fate and transport' of chemicals. Although site reconnaissance work does involve does some level of technical expertise , it certainly not rise to the level of an experienced or trained hydrologist." Plaintiff also asserts that defendant American " unfairly proffers both Mr. Kleaka and Mr. Cressy as general ' expert witnesses ' without specifying an area of expertise that they are expected to testify about. Neither this Cour nor the plaintiff can know for sure if defendants purported ' expert witnesses ' wil be testifying as expert chemists , expert hydrologist , expert carologists , expert geologists or expert water system engineers.... As such , defendants have not fulfilled their obligation of expert disclosure for these putative witnesses where have not disclosed the subject matter , as here , they on which each expert is expected to testify. In opposition to plaintiffs motion , defendant American argues that its experts are clearly qualified to testify as to the issues set forth in defendant American s CPLR ~ 3101 (d) Expert Witness Disclosure , and , notwithstanding that defendant American s experts are qualified plaintiff s instant motion is premature as the case has not been scheduled for trial assigned to a judge for trial and , at the very least , defendant American , has not been s experts are entitled to a [* 4] Frye Hearing prior to any determination being made on their qualifications. Defendant American states that " Vice President Kevin Kleaka and Assessment Supervisor James Cressy of Impact Environmental Consulting, Inc. clearly have the requisite skil , training, education , knowledge or experience to testify as to their opinion that perc discharged from the ADIC (defendant American J site prior to September 1995 did not migrate south and impact plaintiffs water well. " Defendant American makes note of Mr. Kleaka experience , certification and training and organizational membership as set forth in his s experience , course work Curriculum Vitae. Defendant American also makes note of Mr. Cressy and training as set forth in his based on a review of the Curriculum Vitae. curriculum vitas Defendant American argues that " (iJt is clear of Vice President Kevin Kleaka and Assessment Supervisor James Cressy of Impact Environmental Consulting, Inc. that they have the requisite skil , training, education , knowledge or expertise to qualify as experts with regard to perc migration and containation. Mr. Kleaka has 14 years experience as Vice President of an environmental consulting firm that does ov er $4 milion in anual revenue from of Phase I and II Environmental Site Assessments, NYSDEC work consisting Spil Investigations and Remediations , he is an NYSDEC approved Project Manager for NYS Inactive Hazardous Waste Sites , he has a Bachelor of Science in Environmental Sciences and has undergone training , which are specifically with regard to groundwater remediation and geophysical investigation Environmental precisely the issues in this litigation. Mr. Cressy has performed over 450 Phase I Assessments , over 100 Phase II Environmental Site Assessments and has undergone training in hydrogeology and Long Island Groundwater , again , precisely the issues in this litigation. Based upon a review of the Curriculum Vitas of defendant American s proposed experts, Kevin Kleaka and James Cressy, along with defendant American Witness Disclosure , as well as the arguments presented above ' s CPLR~ 3101 (d) Expert , the Court finds that defendant American satisfied the requirements of CPLR~ 3101 (d) by providing plaintiff with information with respect to its proposed expert witnesses. At this time , the Cour, in its discretion , wil not [* 5] preclude said witnesses from testifying at trial. However , it wil be the decision ofthe trial cour after hearing the pertinent testimony with respect to said witnesses , as to whether said witnesses wil be deemed " experts. Accordingly, plaintiffs motion for an order excluding the testimony of defendant NUAmerican Cleaners , Inc. d/b/a American Drive- In Cleaners i/s/ha American Dry Cleaners f/k/a American Drive- In Cleaners American ) purorted experts , Kevin Kleaka and James Cressy, is hereby DENIED. All parties shall appear for Trial in Nassau County Supreme Cour, Differentiated Case Management Part (DCM) at 100 Supreme Court Drive , Mineola , New York , on Februar 2 2012 , at 9:30 a. This constitutes the Decision and Order of this Court. E N- R : . DENISE L. SHER, A. Dated: Mineola, New York Januar 18 , 2012 ENTERED JAN 20 2012 NASSAU COUHTY CGUHTY CLERK' . OFFICE
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